8 Responses to Judicial Activism

Here’s another dirty little secret: important parts of the “judicial activism” of “liberal” justices in recent generations were not quite as utterly untethered to the Constitutional text as they have been accused of. Rather, they were work-arounds about dubious activist precedents that had read meaning out of Constitutional texts – for example, the Slaughter-House Cases (1873), which pretty much drained the Privileges and Immunities Clause(s) of meaning – a lot of what the P&I Clause(s) could have been understood to have permitted or even required textually has simply been moved under the aegius of other clauses to avoid a messy undoing of those cases and their progeny. That’s how judicial sausages get made.

Actually, for all the talk about Roe/Casey and other hot-button precedents of the post-Brown era, it would be much more illuminating if someone bothered to ask SCOTUS nominees about hoary precedents like the Slaughter-House Cases – cases that the public and politicians don’t focus on but over which constitutional scholars have spilled much ink.

Micha, if you’re going to quote me, do it accurately. I didn’t say “act of Congress,” I said “congressional legislation.” Roe dealt with state legislation, I believe, and it was ruled by a majority Republican court.

I don’t believe you understand what “judicial activism” means. It does not mean the striking down of legislation as unconstitutional, it means creating new law, whole cloth that does not exist in the Constitution.

Sure. Roe v. Wade made abortion legal in all 50 states through all nine months of pregnancy. Some nebulous right to “privacy” allowed women to kill their children in the womb which does not exist in the Constitution.

Roe v Wade nullified laws in existing states. It did not create or write new law. It followed the wording of the 14th amendment regarding “persons born.” Children in the womb are not born, hence they have no rights according to the constitution. Also, the justices who ruled on Roe were mostly Republicans, not Democrats.

about Todd Flowerday

A Roman Catholic lay person, married (since 1996), with one adopted child (since 2001). I serve a parish in music ministry.

about John Donaghy

John is a lay missionary since 2007 with a parish in western Honduras. Before that he served in campus ministry and social justice ministry in Iowa. His ministry blog is http://hermanojuancito.blogspot.com

He also blogs reflections on the lectionary and saints/heroes/events of the date at http://walktheway.wordpress.com

He'll be a long-term contributor here analyzing the Latin American bishops' document from their 2007 Aparecida Conference.